City of Albuquerque v. Middle Rio Grande Conservancy Dist.

The majority opinion gives priority to the paving lien over the conservancy lien, resting its conclusion both upon the pertinent paving statute, L.1923, c. 133, and upon an application of the common law principle that first in time is first in right. In so far as the priority accorded rests upon the statute, it involves an unwarranted definition of the word “incumbrancer”. And a proper application of common law principles is denied by an obvious implication of equality arising from the controlling language of the two statutes involved — L.1923, c.133, § 1 and L.1923, c. 140, § 515(1) (c).

The…